Law- Chapter 5 civil law Flashcards
Balance of probabilities
The standard of proof in a civil case.
Binding precedent
A decision of a higher court that must be followed by lower courts in the same hierarchy
Common law/case law/judge-made law
Decisions made by judges that form part of the law.
Court hierarchy
The ranking of courts according to the seriousness of the matters they deal with
Damages
A civil remedy (an order of a court) that aims to compensate the person who has been wronged for the injury or loss suffered.
Defamation
Written or verbal statements that lower a person’s reputation in the eyes of the community.
Defendant
Person against whom a civil action is taken.
Disapprove
When a court expresses disapproval of a previous precedent but is still bound by it.
Distinguish
When a court decides that the material facts of a case are sufficiently different to a precedent to make the precedent not binding on that court
Doctrine of precedent
The common law principle by which the decisions of higher courts in a hierarchy are binding on lower courts in the same hierarchy where the material facts are similar
Duty of care
A legal obligation to avoid causing harm to a person or group when harm is ‘reasonably foreseeable’ if care is not taken; there must be a sufficiently close relationship (sometimes referred to as proximity) between the two people in order for a duty of care to exist.
Injunction
A civil remedy, being a court order that stops someone from doing something or compels someone to do something.
Jurisdiction
The lawful authority or power of a particular court to decide a particular case.
Negligence
Doing or not doing something a reasonable person would or would not do in certain circumstances, which causes harm or loss to another person
Neighbour principle
Used in negligence cases to determine whether a duty of care was owed to the person injured. A person must take reasonable care to avoid acts and omissions that can reasonably be foreseen as likely to injure their ‘neighbours’; that is, the people who would be closely and directly affected by their acts or omissions.
Orbiter dictum
A remark made by a judge in passing, which is not binding.
Order of specific peformance
A civil remedy (an order of court) that requires someone to perform a specific act; usually applied in contract law to order someone to complete a contract.
Overrule
A new case in a higher court creates a new precedent,which means the previous precedent in a different case is no longer applicable.
Persuasive precedent
A decision of another court which is influential but not binding
Plaintiff
Person bringing a civil action; person who has the burden of proving the case.
Precedent
A court decision that is followed by another court lower in the hierarchy
Private nuisance
An act or omission that substantially and unreasonably interferes with the use and enjoyment of land.
Public nuisance
An act or omission that interferes with the comfort or convenience of a number of people to a considerable degree
Ratio decidendi
The reason for a decision (the binding part of a decision).
Remedy
A way in which a court will enforce a right, impose a penalty or make another court order for the benefit of the plaintiff. It is aimed at restoring the plaintiff to the position he or she was in before the wrongful act occurred. The most common remedy is damages
Reverse
A higher court makes a different decision than a lower court in the same case on appeal
Statue
An act of parliament; a piece of legislation
Sue
Start civil proceedings against another person
Tort
A civil wrong ; an act that injures someone in some way, and for which the injured person may sue the wrongdoer for damages
Trespass to goods
Direct interference by one person with another person’s possession of goods.
Trespass to person
Assault, battery or false imprisonment of another person
Why do we need civil law?
Civil law is the enforcement of human rights by way of restoring parties to their original position.
If an individuals rights are infringed they can take the matter to court to ask for compensation as a way of righting the wrong.
Tort law
Relating to negligence, defamation (negligence, intentional, property, nuisance e.c.t)
Aims to protect the rights of individuals
Key principles of civil law
Wronged person bring matter to court = Plaintiff
The party alleged to be wrong = Defendant
The plaintiff will sue the defendant in court or tribunal for = Remedy
(Damages, injections, court orders)
The plaintiff has the burden of probing the defendant wrong
Standard of proof = Balance of probabilities
Sue
institute legal proceedings against (a person or institution), typically for redress
Donoghe v. Stevenson
The snail in a bottle case which provided the guiding principle for the law of negligence (which did not exist prior)
